From the Community | Only pleasant speech is protected at Stanford University

Any illusions that Stanford’s latest commitment to free speech represents a genuine change of policy were quickly dispelled at the Nov. 21 meeting of the Faculty Senate. At that meeting, the Faculty Senate categorically affirmed the principle that at Stanford, the only protected speech is pleasant speech; that is, speech that accords with the narrow groupthink that most of its faculty are supposed to subscribe to.

Last year, a group of students were arrested for defacing buildings with violent, highly offensive, pro-Palestinian graffiti and breaking into the president’s office and destroying it. The Senate meeting began with the announcement of the disciplinary action the University imposed on these students — a two quarter suspension. What would have happened if the students had committed the same acts of vandalism but had instead painted the non-violent phrase “All Lives Matter” on the sandstone walls?  They would have been undoubtedly labelled racists and swiftly expelled.

Later in the meeting, the Senate took up a motion to rescind the censure of Dr. Scott Atlas. The Senate censured Atlas in 2020 when he exercised his First Amendment right to argue against the strict COVID policies implemented by states like California. The motion to rescind was brought to the floor after Stanford’s Policy and Planning Board unanimously agreed that the earlier censure motion was passed without affording Atlas even minimal due process. (Atlas himself was unaware of the original censure motion until after it passed, affording him no opportunity whatsoever to defend himself.) Even so, the Senate voted down the motion to rescind the censure.

The arguments that were made against rescission reveal much about the status of free speech on campus. Let me take them one by one. One might wonder how the Senate could censure a member of the faculty without affording them due process. The argument put forward was that due process can be denied if the stakes are high enough. That this argument was supported by a senior professor representing one of the leading law schools in the country is frankly disturbing. The University has, after all, endowed her with the responsibility, among other things, of training the country’s future judges. This follows an incident a few years ago when Stanford law students asserted that the First Amendment gave them the right to prevent an appellate court judge from speaking. What are law faculty teaching their students? The winds of freedom are certainly not blowing in the Law School.

Underlying the censure argument is the assumption that because of the supposedly overwhelming scientific consensus that Atlas’ policies would do harm, the stakes were too high to accord him due process. Why that would impact deliberation in the Senate is not clear, but my guess is that there is overwhelming consensus amongst judges in this country that denying one of the most basic rights guaranteed under the constitution would do great harm not only to the judiciary, but to the country. Yet I know of no push in the Senate to censure law faculty who espouse this view.  

The Senate also argued that Dr. Atlas himself denied the free speech rights of others when he threatened to sue signers of a petition that accused him of intentionally spreading falsehoods and misrepresenting science. According to this argument, not only did Atlas forfeit his free speech rights, but he also forfeited his constitutional right to defend himself against defamation simply because he had the audacity to challenge faculty groupthink on COVID policy.

Then there was the argument that Atlas’ tweet to Michigan residents to “rise up” constituted a call to violence. This ignores, of course, the fact that immediately after the tweet, Atlas clarified that he was speaking metaphorically and was not calling for any violence. Slogans such as “From the River to the Sea” or “No Justice, No Peace” have adorned the campus in the past year. These unapologetic calls for violence constitute, like Atlas’s tweet, protected speech under the First Amendment. What the Atlas vote makes clear is that they prompted no censure action from the Senate not for that reason, but rather because they fit squarely with the groupthink that determines what speech is and is not allowed at Stanford.

One of the things that Atlas was accused of in the Senate was the unsupported claim that his speech as an advisor on the White House Coronavirus Task Force resulted in hundreds of thousands of extra deaths. The fact is that the vast majority of Americans do not even know who Atlas is, never mind what he said, and none of his recommendations were implemented by the federal government. But more importantly, subsequent evidence strongly supports many of Atlas’ recommendations. Excess deaths in Sweden (a country that essentially followed Atlas’ recommendations) were the second lowest in the developed world while the USA ranked second highest. In fact, Sweden actually experienced a lower death rate than normal in the pandemic, well below its cultural twin, Norway, which implemented strict lockdown policies.

Left unsaid are the large economic and social costs of COVID lockdowns, including the fact that because of the lockdowns poor children were denied an education — the only avenue open to them to join the elites. Many of these costs could have been avoided had Atlas been allowed to present his arguments.   In my experience, when a powerful group resorts to such extreme measures to shut down debate, it is because they actually cannot defend their position. So the fact that subsequent experience strongly supports Atlas’ arguments was in many ways predictable.

The last argument that the Senate made is the most ironic. They questioned the timing of the rescission motion. The argument was made that somehow a vote to rescind would be interpreted by the rest of America as an endorsement of Trump’s policies.  Ignoring the fact that the initial petition to rescind was brought to the Senate almost a year ago, and the delay in bringing the matter to a vote resulted from the actions of the senators opposed to the motion, the logic underlying this argument escapes me. But what is certain is that the result of the vote will have the exact effect its proponents worried about — it will exacerbate the problems universities like Stanford will face in the new administration.

Consider what would transpire were the new Secretary of Education to read the minutes of the Senate meeting. With certainty, she would see those minutes as further evidence that the elites who were running the country under Biden had completely lost touch with the values on which this country is built. This is why so many people chose to vote against their economic interests in favor of a candidate as fundamentally flawed as Donald Trump. Instead of blaming the outcome of the presidential election on voter ignorance or racism, it might be time for us to take seriously the possibility that the liberal groupthink that dominates the thinking on campuses like Stanford has strayed so far from the country’s core values than even a billion dollars was not enough to convince most Americans that Donald Trump would be a worse outcome than Kamala Harris. It is time for us to stop patronizing the rest of America, and instead entertain the possibility that we might have something to learn from them about our country, its values and the freedom to express an opinion.

Jonathan Berk is the A.P. Giannini Professor of Finance at Stanford Graduate School of Business. He is also a member of the Faculty Senate.

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